Adults with Incapacity Amendment Act: consultation

We know from the Scottish Mental Health Law Review that widening accessibility of power of attorney is important to increase the uptake of power of attorney documents. We propose to increase the class of persons that are allowed to certify a granter’s capacity in a power of attorney document.

It is proposed that the class of persons that can certify a granter’s capacity in a power of attorney is extended. First we propose that clinical psychologists are considered for this purpose. Clinical Psychologists are mental health professionals who have extensive training in the field of mental disorders and have the knowledge and expertise to undertake this role.

Second we have considered the approach in England and Wales where Chartered Legal Executives (CLE’s) carry out many of the same functions as solicitors. They can also facilitate the creation of an original power of attorney, but were not able to certify capacity. It's important to note that the certification process is different in England and Wales to Scotland. Scottish certification requirements are substantially tighter than those in England and Wales.

Accredited paralegals in Scotland carry out many of the same functions as solicitors. We suggest that the training they undergo would give them the skills to certify a granter’s capacity for powers of attorney as they work closely under the supervision of a Scottish solicitor, either in private practice or in-house.

We therefore propose widening the class of persons who can certify that a granter has capacity in a power of attorney to include a paralegal as well as psychologist.  These proposals are aimed at increasing the channels through which consumers can obtain a power of attorney and promote consumer choice. This aligns with our policy of increasing access to justice.